The McLendon standard is unconstitutional in that it violates the equal protection clause of the 14th Amendment and the separation of powers doctrine. Father has a fundamental legal right to the custody of his children.
The right to maintain family integrity is a fundamental right, protected by due process requirements of the Constitution. Hamilton v. State, 410 So. 2d 64 (Ala. Civ. App. 1982), citing May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). See also Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). This affords a parent a prima facie right to custody of its child. Matter of Mastin, 462 So.2d 938 (Ala.Civ.App.1984).
Moore v. State of Alabama, Dept. of Pensions and Security, 470 So. 2d. 1269, 1270 (Ala. Civ. App. 1985).
The default rule is that a child belongs with their parent. AJHT v. KOH, 983 So. 2d 394 (Ala. Civ. App. 2007)(“the maintenance of family integrity is a fundamental right and that every parent has a prima facie right to custody of his or her child.”); See also Ex parte ERG, 73 So. 3d 634 (Ala. 2011). This right is guaranteed by the Constitution. Troxel v. Granville, 530 U.S. 57 (2000).
The equal protection clause of the 14th Amendment[1] requires that both parents be treated the same by the courts regarding their rights to parent their children. This is the reason that the “tender years doctrine” was abolished. It violated equal protection and made separate classes of parents, with female parents receiving preferential treatment. Equal protection prevents such discrimination. Equal protection demands that all fit parents be treated equally by the courts. A prior custody determination does not give the court license to violate the equal protection clause.
Because Father’s rights represent a fundamental liberty interest any government interference with his rights must meet the strict scrutiny standard. Ex parte ERG, 73 So. 3d 634 (Ala. 2011); Troxel v. Granville, 530 U.S. 57 (2000). Strict scrutiny requires that the government show a compelling state interest, advanced by the least restrictive means before it can interfere with a right. Id. The McLendon standard creates classes of parents without any compelling state interest to do so. The Court has explained the McLendon standard thusly:
"`In situations in which the parents have joint legal custody, but a previous judicial determination has granted primary physical custody to one parent, the other parent, in order to obtain a change in custody, must meet the burden set out in Ex parte McLendon [, 455 So. 2d 463 (Ala. 1984)]. See Scholl v. Parsons, 655 So. 2d 1060, 1062 (Ala. Civ. App. 1995). The burden set out in McLendon requires the parent seeking a custody change to demonstrate that a material change in circumstances has occurred since the previous judgment, that the child's best interests will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody. Ex parte McLendon, 455 So. 2d at 866.
S.L.L. v. L.S., ___ So. 3d ___, 2010 WL 1265200 *5 (Ala. Civ. App., April 2, 2010) citing Dean v. Dean, 998 So. 2d 1060, 1064-65 (Ala. Civ. App. 2008).
Following a custody determination a fit non-custodial parent is forever held to a different standard than a custodial parent by the courts. A non-custodial parent seeking to modify custody must not only show that a change in custody would serve the best interests of the child or a mere change of circumstance, but he must also show a material change in circumstances has occurred, and that the benefit of the proposed change in custody outweighs the disruptive effect of a change in custody. Id. This heightened standard is not applied to the custodial parent, nor is it applied to parents with equal/joint physical custody. Ex parte Couch, 521 So. 2d 987 (Ala. 1988). Different classes of parents have been created by McLendon despite the fact that all fit parents have the same rights.[2]
McLendon, by admission, is a rule of repose, meaning that the purpose of McLendon is to prevent “disruptive” changes in custody or further petitions regarding changes in custody. Ex parte Cleghorn, 993 So. 2d 462 (Ala. 2008). However, this reasoning is fundamentally flawed. There is no scientific data to support the claim that changing custody between parents is “inherently disruptive.” In fact, it has been universally accepted in the mental health community that children benefit from positive relationships with both parents. See Using Child Development Research to Make Appropriate Custody and Access Decisions for young Children, by Joan B. Kelly and Micheal E. Lamb, in Family and Conciliation Courts Review, Vol. 38 No. 3, July 2000, 297-311,[3] see also Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research, by Joan B. Kelly, in Family Process Vol. 46, No. 1, 35-52, at 46 (2007)(“A meta-analysis of 33 studies comparing joint physical and sole maternal custody from court, convenience, and school-based samples indicated that children in joint physical custody arrangements were better adjusted across multiple measures of general, behavioral, and emotional adjustment, self esteem, family relations, and divorce-specific adjustment. Regardless of whether the ratings were provided by mothers, fathers, teachers, clinicians, or the children themselves, joint custody children were better adjusted than sole maternal custody children. Although joint custody parents reported less past and current conflict compared with sole custody parents, conflict was not a predictor of the joint custody advantage in child adjustment.”). Further, studies have consistently held that frequent parenting time exchanges are actually preferable rather than disruptive. Id. At 304 (parenting schedules should involve “more transitions, rather than fewer to ensure the continuity of both relationships”).[4] Far more disruptive is the negating of the parent child relationship in an effort to avoid inconveniencing the court. Id at 304, 309.[5] Preventing further petitions is not a compelling state interest.[6] Custody petitions present an inconvenience for the courts. An inconvenience is not a compelling state interest. Further, the Alabama Supreme Court has held that the best interests of the child “are incredibly important, to be sure, but, absent more, they do not rise to the level of a compelling state interest.” Ex parte ERG, 73 So. 3d 634, 647 (Ala. 2011). Sadly, McLendon style custody situations and analysis seldom if ever serves the best interests of the child. Id.
The McLendon standard cannot withstand strict scrutiny. Further, the McLendon standard fails to satisfy the “least restrictive means” test as well. The McLendon standard therefore is unconstitutional. This Court therefore must apply a best interest standard, treating the parties equally if it is to satisfy its obligations under the equal protection clause.
Further, the McLendon standard is unconstitutional in that it violates the separation of powers doctrine. McLendon puts in place additional requirements that are not found in the Code of Alabama. The Code of Alabama does not explicitly delineate different standards of review in custody cases based on factors such as identity of the filing party or whether the Court is hearing a modification rather than an initial divorce proceeding or a paternity action.
In McLendon the Court created a modification standard that was not then, and is not now, adopted by the legislature. No matter how well intentioned the Court cannot decide cases based on what it believes the law should, but does not, state. See Benjamin Cardozo, The Nature of the Judicial Process, 141 (1921)(“[The judge] is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.”).
Recently, the Alabama Supreme Court has rejected the long held precedent of ex parte Bayliss, on the grounds that it violated the separation of powers doctrine. Christopher v. Christopher, [Ms. 1120387, October 4, 2013] ___ So. 3d ___ (Ala. 2013). McLendon suffers from the same defects as Bayliss and is thus due to be overturned.
[1] The McLendon Standard also violates the due process clause of the 14th Amendment. The McLendon Standard violates substantive and procedural due process rights in that it creates both an unfair process and arbitrary outcomes. Alabama Republican Party v. McGinley, 893 So. 2d 337 (Ala. 2004).
[2] Interestingly, in Couch the court admitted “There are two different standards for reviewing custody arrangements.” 521 So. 2d at 989. The Court went on to recognize that “[w]hen a court makes an initial determination of custody, each parent has an equal right to try to gain custody of the children.” Id. However, the Court never identifies a compelling state interest that is served by infringing on these rights when a modification is requested.
[3] “In general, relationships with parents play a crucial role in shaping children’s social, emotional, personal, and cognitive, development, and there is substantial literature documenting the adverse effects of disrupted parent-child relationships on children’s development and adjustment (Lamb, 1999; Lamb, Hwang, Ketterlinus & Fracasso, 1999). The evidence further shows that children who are deprived of meaningful relationships with one of their parents are at greater risk psychologically, even when they are able to maintain relationships with the other of their parents. Stated differently, there is substantial evidence that children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both of their parents, whether the two parents live together or not.” At 303.
[4] “Overall, the empirical literature demonstrates numerous benefits to children, including better psychological and behavioral adjustment and academic achievement, when their living arrangements enable supportive and loving fathers to be actively involved in their children’s lives on a weekly and regular basis, including a combination of overnights and school-related and leisure time… Those children and adolescents who have lived in shared physical custody arrangements are generally satisfied, feel loved, report less feelings of loss, and do not frame their lives through the lens of parental divorce, compared with those who lived in sole custody of their mothers. Young children with attachments to both parents need sufficient contact with their adequate nonresident parents without prolonged separations of many days or weeks to maintain meaningful and close relationships.” Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research, by Joan B. Kelly, in Family Process Vol. 46, No. 1, 35-52, at 46 (2007).
[5] “children are enriched by regular, diverse, and appropriate interactions with two involved and emotionally supportive parents, and this is no less true for school-age children as they journey towards adolescence. Regardless of who has been the primary care taker, therefore, children benefit from the extensive contact that fosters meaningful father-child and mother-child relationships.”
[6] The Alabama Supreme Court has recently rejected the notion that the state has an over-riding compelling interest in the outcome of custody/support cases. The language in Bayliss that the stability of the government is at stake in a custody dispute has been emphatically rejected. Christopher v. Christopher, [Ms. 1120387, October 4, 2013] ___ So. 3d ___ (Ala. 2013).
The right to maintain family integrity is a fundamental right, protected by due process requirements of the Constitution. Hamilton v. State, 410 So. 2d 64 (Ala. Civ. App. 1982), citing May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). See also Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). This affords a parent a prima facie right to custody of its child. Matter of Mastin, 462 So.2d 938 (Ala.Civ.App.1984).
Moore v. State of Alabama, Dept. of Pensions and Security, 470 So. 2d. 1269, 1270 (Ala. Civ. App. 1985).
The default rule is that a child belongs with their parent. AJHT v. KOH, 983 So. 2d 394 (Ala. Civ. App. 2007)(“the maintenance of family integrity is a fundamental right and that every parent has a prima facie right to custody of his or her child.”); See also Ex parte ERG, 73 So. 3d 634 (Ala. 2011). This right is guaranteed by the Constitution. Troxel v. Granville, 530 U.S. 57 (2000).
The equal protection clause of the 14th Amendment[1] requires that both parents be treated the same by the courts regarding their rights to parent their children. This is the reason that the “tender years doctrine” was abolished. It violated equal protection and made separate classes of parents, with female parents receiving preferential treatment. Equal protection prevents such discrimination. Equal protection demands that all fit parents be treated equally by the courts. A prior custody determination does not give the court license to violate the equal protection clause.
Because Father’s rights represent a fundamental liberty interest any government interference with his rights must meet the strict scrutiny standard. Ex parte ERG, 73 So. 3d 634 (Ala. 2011); Troxel v. Granville, 530 U.S. 57 (2000). Strict scrutiny requires that the government show a compelling state interest, advanced by the least restrictive means before it can interfere with a right. Id. The McLendon standard creates classes of parents without any compelling state interest to do so. The Court has explained the McLendon standard thusly:
"`In situations in which the parents have joint legal custody, but a previous judicial determination has granted primary physical custody to one parent, the other parent, in order to obtain a change in custody, must meet the burden set out in Ex parte McLendon [, 455 So. 2d 463 (Ala. 1984)]. See Scholl v. Parsons, 655 So. 2d 1060, 1062 (Ala. Civ. App. 1995). The burden set out in McLendon requires the parent seeking a custody change to demonstrate that a material change in circumstances has occurred since the previous judgment, that the child's best interests will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody. Ex parte McLendon, 455 So. 2d at 866.
S.L.L. v. L.S., ___ So. 3d ___, 2010 WL 1265200 *5 (Ala. Civ. App., April 2, 2010) citing Dean v. Dean, 998 So. 2d 1060, 1064-65 (Ala. Civ. App. 2008).
Following a custody determination a fit non-custodial parent is forever held to a different standard than a custodial parent by the courts. A non-custodial parent seeking to modify custody must not only show that a change in custody would serve the best interests of the child or a mere change of circumstance, but he must also show a material change in circumstances has occurred, and that the benefit of the proposed change in custody outweighs the disruptive effect of a change in custody. Id. This heightened standard is not applied to the custodial parent, nor is it applied to parents with equal/joint physical custody. Ex parte Couch, 521 So. 2d 987 (Ala. 1988). Different classes of parents have been created by McLendon despite the fact that all fit parents have the same rights.[2]
McLendon, by admission, is a rule of repose, meaning that the purpose of McLendon is to prevent “disruptive” changes in custody or further petitions regarding changes in custody. Ex parte Cleghorn, 993 So. 2d 462 (Ala. 2008). However, this reasoning is fundamentally flawed. There is no scientific data to support the claim that changing custody between parents is “inherently disruptive.” In fact, it has been universally accepted in the mental health community that children benefit from positive relationships with both parents. See Using Child Development Research to Make Appropriate Custody and Access Decisions for young Children, by Joan B. Kelly and Micheal E. Lamb, in Family and Conciliation Courts Review, Vol. 38 No. 3, July 2000, 297-311,[3] see also Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research, by Joan B. Kelly, in Family Process Vol. 46, No. 1, 35-52, at 46 (2007)(“A meta-analysis of 33 studies comparing joint physical and sole maternal custody from court, convenience, and school-based samples indicated that children in joint physical custody arrangements were better adjusted across multiple measures of general, behavioral, and emotional adjustment, self esteem, family relations, and divorce-specific adjustment. Regardless of whether the ratings were provided by mothers, fathers, teachers, clinicians, or the children themselves, joint custody children were better adjusted than sole maternal custody children. Although joint custody parents reported less past and current conflict compared with sole custody parents, conflict was not a predictor of the joint custody advantage in child adjustment.”). Further, studies have consistently held that frequent parenting time exchanges are actually preferable rather than disruptive. Id. At 304 (parenting schedules should involve “more transitions, rather than fewer to ensure the continuity of both relationships”).[4] Far more disruptive is the negating of the parent child relationship in an effort to avoid inconveniencing the court. Id at 304, 309.[5] Preventing further petitions is not a compelling state interest.[6] Custody petitions present an inconvenience for the courts. An inconvenience is not a compelling state interest. Further, the Alabama Supreme Court has held that the best interests of the child “are incredibly important, to be sure, but, absent more, they do not rise to the level of a compelling state interest.” Ex parte ERG, 73 So. 3d 634, 647 (Ala. 2011). Sadly, McLendon style custody situations and analysis seldom if ever serves the best interests of the child. Id.
The McLendon standard cannot withstand strict scrutiny. Further, the McLendon standard fails to satisfy the “least restrictive means” test as well. The McLendon standard therefore is unconstitutional. This Court therefore must apply a best interest standard, treating the parties equally if it is to satisfy its obligations under the equal protection clause.
Further, the McLendon standard is unconstitutional in that it violates the separation of powers doctrine. McLendon puts in place additional requirements that are not found in the Code of Alabama. The Code of Alabama does not explicitly delineate different standards of review in custody cases based on factors such as identity of the filing party or whether the Court is hearing a modification rather than an initial divorce proceeding or a paternity action.
In McLendon the Court created a modification standard that was not then, and is not now, adopted by the legislature. No matter how well intentioned the Court cannot decide cases based on what it believes the law should, but does not, state. See Benjamin Cardozo, The Nature of the Judicial Process, 141 (1921)(“[The judge] is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.”).
Recently, the Alabama Supreme Court has rejected the long held precedent of ex parte Bayliss, on the grounds that it violated the separation of powers doctrine. Christopher v. Christopher, [Ms. 1120387, October 4, 2013] ___ So. 3d ___ (Ala. 2013). McLendon suffers from the same defects as Bayliss and is thus due to be overturned.
[1] The McLendon Standard also violates the due process clause of the 14th Amendment. The McLendon Standard violates substantive and procedural due process rights in that it creates both an unfair process and arbitrary outcomes. Alabama Republican Party v. McGinley, 893 So. 2d 337 (Ala. 2004).
[2] Interestingly, in Couch the court admitted “There are two different standards for reviewing custody arrangements.” 521 So. 2d at 989. The Court went on to recognize that “[w]hen a court makes an initial determination of custody, each parent has an equal right to try to gain custody of the children.” Id. However, the Court never identifies a compelling state interest that is served by infringing on these rights when a modification is requested.
[3] “In general, relationships with parents play a crucial role in shaping children’s social, emotional, personal, and cognitive, development, and there is substantial literature documenting the adverse effects of disrupted parent-child relationships on children’s development and adjustment (Lamb, 1999; Lamb, Hwang, Ketterlinus & Fracasso, 1999). The evidence further shows that children who are deprived of meaningful relationships with one of their parents are at greater risk psychologically, even when they are able to maintain relationships with the other of their parents. Stated differently, there is substantial evidence that children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both of their parents, whether the two parents live together or not.” At 303.
[4] “Overall, the empirical literature demonstrates numerous benefits to children, including better psychological and behavioral adjustment and academic achievement, when their living arrangements enable supportive and loving fathers to be actively involved in their children’s lives on a weekly and regular basis, including a combination of overnights and school-related and leisure time… Those children and adolescents who have lived in shared physical custody arrangements are generally satisfied, feel loved, report less feelings of loss, and do not frame their lives through the lens of parental divorce, compared with those who lived in sole custody of their mothers. Young children with attachments to both parents need sufficient contact with their adequate nonresident parents without prolonged separations of many days or weeks to maintain meaningful and close relationships.” Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research, by Joan B. Kelly, in Family Process Vol. 46, No. 1, 35-52, at 46 (2007).
[5] “children are enriched by regular, diverse, and appropriate interactions with two involved and emotionally supportive parents, and this is no less true for school-age children as they journey towards adolescence. Regardless of who has been the primary care taker, therefore, children benefit from the extensive contact that fosters meaningful father-child and mother-child relationships.”
[6] The Alabama Supreme Court has recently rejected the notion that the state has an over-riding compelling interest in the outcome of custody/support cases. The language in Bayliss that the stability of the government is at stake in a custody dispute has been emphatically rejected. Christopher v. Christopher, [Ms. 1120387, October 4, 2013] ___ So. 3d ___ (Ala. 2013).
RSS Feed
